Management 351 – Class 2

1. Management 351 – Class 2 • Chapters 3 and 14 • Revisions to syllabus • Change/confirm paper length: 4-6 pages • Rework schedule • Matewan is now extra credit • Room change requested • Notes/website reminder

2. Chapter 3 – EEO and Legal • What’s the point? • Doing the right thing • “Managing risk” • Protecting employer rights • Employee advocate • Protecting employee rights

3. Employment law – shifting sands • “A dynamic legal landscape” • Courts constantly change foundations • Legislative changes less frequent • Proposed FLSA revisions • Complexity is an issue • ADA: 1,000 disabilities affecting 43MM

4. Color blind vs color conscious • Fair employment • Decisions are made without regard to “color” • Broadly speaking, protected classes* are protected • Affirmative Action • Seeks to right past wrongs • Decisions, themselves, NOT affected • Processes ARE affected

5. Equal Pay Act • Essentially equal pay for equal work • Applies broadly to men and women • Exceptions • Does not prohibit merit pay • Quantity and quality of production • Bona fide seniority plans • Has it worked???

6. Title VII of the 1964 Civil Rights Act • Often referred to as the CRA • Most important employment legislation on the books • Passed one year after MLK’s “I have a dream” • Applies to employers with 15+ employees • Established protected class categories

7. Race Color National origin Age Religion Disability Gender/sex Pregnancy Sexual orientation Marital status Familial status Family leave Injured workers Whistle blowers Retaliation Association Protected classes

8. Discrimination defined • Discrimination: making distinctions • Discrimination happens all the time! • Discrimination based on protected class status is the key (remember this!) • Disparate treatment: intentional • Adverse impact (disparate impact): unintentional (chart page 92)

9. Griggs v Duke Power • Companies may be guilty despite their best efforts to not discriminate • Burden of proof placed on employers • Must show that “tests” are not discriminatory in their impact

10. Defending against discrimination charges • Plaintiff establishes “prima facie” case • “On its face” the actions appear discriminatory • Disparate treatment uses McDonnell-Douglas test • Applicant not hired • Applicant was qualified • Applicant is a member of a protected class • Company hired someone in another class after rejecting the applicant

11. Prima facie and four-fifths rule • UGESP • EEOC provision for establishing evidence of discrimination • Compares hiring rates of protected classes to those of majority classes (example on page 93) • Whites hired at 50%; African Americans at 25%: four-fifths (80%) of 80% of 50% is 40% which is more than 25% (!)

12. After prima facie • After prima facie case is established (i.e. the employer appears to have discriminated) the burden of proof shifts • Employer defenses • Job relatedness (most common) • BFOQ • Seniority • Business necessity

13. Title VII and pregnancy • Protects women based either on: • Their ability to become pregnant • Their actual pregnancy • Or a related condition

14. Harassment • Based on any protected class • Includes general harassment • Includes sexual harassment • Has this suddenly become an issue?

15. EEOC statistics • FY 2001 • 59,631 Charges filed with EEOC • $146.8 million in monetary benefits • FY 2002 • 14,396 Harassment Charges filed with EEOC • Ten year increase of 249% (1989 to 1999) • FY 2001 • 22,257 Retaliation Charges filed • Ten year increase of 201%

16. How pervasive is harassment? • Some statistics: • 31% of females and 7% of males • 62% of those harassed took no action • 100% of women report it was a man • 59% of men report it was a woman • 43% report it was a supervisor • 27% report it was someone senior to them • 19% report it was a peer-level employee • 8% report it was a junior-level employee

17. Two broad categories • Quid pro quo: literally this for that • Hostile work environment • Teresa Harris v Forklift Systems • The behavior need only be such that a “reasonable person” would be offended • EEOC definition of harassment (page 95) • Supreme Court guidance (page 96) • Same sex-sexual harassment

18. Managing risk • Employers may be held liable for actions of their managers even if they were unaware of the actions • Employer defense: • Reasonable care to prevent • Plaintiff failed to report • Personal liability exists for managers and co-workers alike

19. Civil Rights Act of 1991 • Amended 1964 CRA • Burden of proof: returned to Griggs standard (shifted BOP back to employers) • Quotas: specifically outlawed • Damages and jury trials • Enabled both • Punitive damages • Compensatory damages

20. Executive order 11246 • Established affirmative action • “50 and 50” rule: 50 employees and $50k+ in federal contracts or subcontracts

21. Other laws • ADEA of 1967 • Protects those over 40 (originally 40-65) • ADA of 1990 • Employment discrimination is prohibited against individuals with disabilities who are able to perform the essential functions of the job with or without reasonable accommodation

22. Individuals with disabilities • (sample list on page 100) • Definition: substantially limits a major life (NOT WORK) activity • Toyota employee with carpal tunnel not successful in ADA case • Extends to those perceived as disabled • Excludes drug and alcohol unless under treatement

23. Essential Functions • The reason the job exists is to perform the essential functions • Marginal functions: • Secondary job requirements • Job functions done on an ad hoc basis • Duties that are performed as a back up

24. Reasonable accommodation • No “bright line” test • Varies depending on situation and employer’s resources

25. Enforcement • EEOC enforces civil rights laws • EEOC roles • Investigation • Conciliation • Litigation • OFCCP enforces laws and executive orders (affirmative action)

26. Affirmative Action Plans • Essentially a comparative document with corrective action • Compares: • Workforce availability to • Workforce utilization • Includes specific actions to address gaps in utilization

27. Chapter 14 – Your rights • A right: the ability to engage in conduct that is protected by law or social sanction free from interference by another party. • Statutory rights: protected by law • Contractual rights: protected by… wait for it… contracts

28. Comparison of rights • Statutory, contractual and “other” rights (table page 467) • Wrongful discharge: discharge based on protected class status • Constructive discharge • Limited right to privacy • Limited right to free speech

29. Management rights • Essentially to run a business as seen fit and to retain profits • Employment at will: • Either party can, • Enter into or dissolve the employment relationship, • At any time, • For any reason, • Without or without notice.

30. Legal limitations to at-will • Public policy exceptions • Filing workers’ compensation claim • Exercising legal duty (i.e. jury duty) • Refusing to violate professional ethics • Refusing to lobby for a political candidate favored by an employer • Implied contracts: what you say CAN hurt you! • Pages 472 to end of chapter: skim and be familiar – light coverage